MINOR PARTY
AND INDEPENDENT VOTE FOR TOP OFFICES IS 2nd BEST MID-TERM RESULT
SINCE 1934

In November 2006, 5.0%
of the vote for the top office on the ballot went to minor party and independent
candidates. This is the second-best showing in a mid-term election for "other"
since 1934. The "other" vote was 5.3% in 2002.

"Top office"
is Governor, in the 36 states that elected a Governor. In the others, it is
U.S. Senate. In Kentucky, Louisiana, and North Carolina, which had no partisan
statewide elections, it is U.S. House. "Other" does not include
votes cast for minor party nominees who were also major party nominees. "Other"
also does not include "None of the Above" in Nevada, nor does it
include write-ins.

Using the same rules
for previous mid-term years gives these results:

1998

4.9%

1994

4.5%

1990

4.6%

1986

3.6%

1982

1.8%

1978

2.4%

1974

2.4%

1970

3.4%

1966

3.2%

1962

1.1%

1958

.9%

1954

.6%

1950

1.1%

1946

1.4%

1942

4.8%

1938

3.8%

1934

5.6%

1930

6.1%

1926

4.5%

1922

4.2%

1918

6.8%

1914

16.3%

The "other"
vote in 1914 was high because there were three strong minor parties that year.
The Progressive Party received 10%, the Socialist Party 4%, and the Prohibition
Party 2%. They each elected at least one member to Congress that year.

Many states still havenít
released official vote tallies. Using a combination of official and unofficial
tallies from all states, these are the totals so far for each party for the
"top" office: Democratic 40,264,560 (49.28%); Republican 37,379,872
(45.75%); independent 1,797,050 (2.20%); Green 949,185 (1.16%); Libertarian
778,395 (.95%); Constitution 193,063 (.24%); Reform 97,677 (.12%), other parties
245,289 (.30%). See the vote by state and the breakdown of the other parties
below.

On October 30, U.S. District
Court Judge James Whittemore, a Clinton appointee, issued an order requiring
that WFLA-TV (sponsor of the Florida gubernatorial debate set for that night)
admit Max Linn, the Reform Party nominee. Linn v Media Group Corp., 8:06-cv-2005.
The court convened at 4:30 p.m., and the judge issued his ruling at 5 p.m.
The debate started at 7 p.m. Chris Matthews was the debate moderator, and
he seemed to take the transformation of the debate from a 2-way to a 3-way
event with equanimity.

The basis for the order
was that WFLA-TV had said it would admit anyone who was at 7% in polls. Linn
had 8.7% in one poll, so this case was about forcing the sponsor to honor
a commitment. This case is not a precedent that certain poll thresholds are
too high.

This case was in federal
court because WFLA-TV lawyers had transferred it there. The original case
had been filed in state court. This case should not be confused with a similar
Max Linn lawsuit filed to get into the debate of October 24. In that earlier
case, Linn won in lower court but the next day a State Appeals Court had reversed
his victory.

VOTERS
APPROVE ALL BALLOT QUESTIONS ON INSTANT-RUNOFF

On November 7, voters
passed Instant-Runoff in all four jurisdictions that were voting on it. Oakland,
California, passed it with 69%. Minneapolis passed it by 65%.

In Davis, California,
voters passed Measure L, which provides for Single Transferable Vote for multi-winner
elections such as City Council at-large. This is the system used in Cambridge,
Massachusetts and the system used in New York city council elections between
1937 and 1949. It is like Instant-Runoff Voting, but since it applies to multi-winner
office, it is possible for a group to elect one candidate even if the group
is a minority of the electorate.

In Pierce County, Washington,
the voters passed IRV for partisan county elections.

In both California and
Minnesota, the voters elected a new Secretary of State. In each case, the
new Secretary of State had endorsed IRV, wheras the old one had not done so.

Other election reforms
were defeated by the voters. Oregon voters refused to amend their Constitution
to make campaign contribution limits possible. California voters defeated
public funding. Massachusetts voters defeated fusion. Oregon voters defeated
legislative term limits. Florida voters weakened the initiative process, by
passing a measure that will require all ballot measures in the future to pass
with 60% of the vote (ironically, this measure itself received less than 60%
of the vote, but since it hadnít gone into effect yet, it passed). However,
Rhode Island voters passed a measure to let ex-felons vote, even if they are
still on probation or parole.

3rd
CIRCUIT ADMITS FACTUAL ERROR

On November 3, the three
judges in the 3rd circuit who had upheld Pennsylvania ballot access
law retracted their August 23 opinion. They then re-issued the same opinion,
with several paragraphs missing. Rogers v Corbett, 06-2241.

The case attacks a law
that says even if a party polls enough votes to meet the definition of "party",
that it cannot be on the ballot unless it submits 67,070 signatures. The August
decision had upheld that law. It said the reward for a group meeting the 2%
vote test is that it may show all its nominees on a single petition. By contrast,
it said, an unqualified party needs a separate petition for each nominee.

But, the 3rd
circuit was wrong. Pennsylvania also lets unqualified parties list multiple
nominees on a single petition. The Constitution, Green and Libertarian Parties
had pointed out the error, after the decision had been issued.

The three judges responded
by correcting their error, and now the new decision is awaiting a request
to all ten full-time judges of the 3rd circuit to rehear the big
issues in the case.

NEW
HAMPSHIRE LOSS

On November 21, the New
Hampshire Supreme Court upheld New Hampshire ballot access laws that effect
minor parties. Libertarian Party of New Hampshire v State, 2005-606.
The Supreme Court also said it had been proper for the lower court to refuse
to permit evidence to be submitted in this case.

New Hampshire requires
3,000 signatures for a statewide minor party or independent candidate to appear
on the November ballot, 1,500 for U.S. House, 750 for State Senator, and 150
for State House. By contrast, Democrats and Republicans need no signatures
to get on primary ballots if they pay a filing fee ranging from $100 to $2.
The New Hampshire Constitution says everyone has "an equal right to be
elected into office."

The Court said that the
"equal right" provision is not violated, because it is as difficult
for a major party member to win a primary as it is for the nominee of an unqualified
party to submit a petition. This is logically faulty. It fails to consider
that it is also difficult for a minor party member to win a minor party convention
nomination. Pat Buchanan spent over $1,000,000 to win the Reform Partyís presidential
nomination in 2000. It was a difficult struggle for him, since he faced opposition
from Ross Perot, who was backing John Hagelin for that nomination.

Also, in New Hampshire
this year, there was a 3-way battle for the Libertarian Partyís gubernatorial
nomination, and the bitterness from that fight was partly responsible for
the partyís failure to obtain the needed 3,000 signatures for its nominee,
Richard Kahn.

Since members of all
parties (qualified and unqualified alike) face a struggle to win their own
partyís nomination, the state is not giving all nominees an "equal right
to be elected", since the nominees of the Democratic and Republican Parties
are automatically placed on the ballot, but the nominees of other parties
are not. The New Hampshire definition of "political party" is so
restrictive, it was not met by any party other than the Democratic and Republican
Parties during the entire period 1916 to the present, except it was met by
the Libertarian Party in 1990, 1992 and 1994.

The New Hampshire Court
cited the unfavorable U.S. Supreme Court decisions, but it didnít mention
the favorable ones. Most of the U.S. Supreme Courtís ballot access decisions
have been victories for minor parties and independents.

Similarly, there have
been reported ballot access wins during the past four months from the 2nd
circuit, the 6th circuit, the 7th circuit, and a U.S.
District Court in Arkansas. There has also been one reported loss, the 3rd
circuit decision mentioned above. The New Hampshire Court mentioned the 3rd
circuit decision, but did not mention the other four cases.

Worst of all, the New
Hampshire Supreme Court mentioned Clingman v Beaver, the latest U.S.
Supreme Court opinion to discuss minor parties, but did not mention the language
supported by five justices that "there is increasing cause for concern
that those in power may be using electoral rules to erect barriers to electoral
competition. In such cases, applying heightened scrutiny helps to ensure that
such limitations are truly justified." The New Hampshire Court refused
to apply heightened scrutiny.

The New Hampshire decision
did not mention any state interest in the petitions, except to quote one sentence
from Jenness v Fortson saying the state interest is "avoiding
confusion, deception, and even frustration of the democratic process."

As documented in a 2002
article by Richard Winger in the Election Law Journal, the reference
to "deception" was a factual error in Jenness. Chief Justice
Burger had asserted during oral argument that opponents of U.S. Senator George
Norris of Nebraska had qualified an independent candidate also named George
Norris. Actually, that dirty trick had been done in a Republican primary,
in 1930.

As for "confusion",
this is a reference to having too many names on a ballot. But New Hampshire
is one of only four states in 2006 that had no minor party or independent
candidates on the statewide ballot. Also, New Hampshireís Secretary of State
has said that voters are not confused by the stateís lengthy presidential
primary ballots.

NADER
APPEALS PENNSYLVANIA CASE

On November 22, Ralph
Nader asked the U.S. Supreme Court to hear his appeal, against a Pennsylvania
State Supreme Court order that he must pay court costs for the challenge procedure
in 2004 that took him off the ballot. In Pennsylvania, when a petition is
challenged, only state judges can decide whether the challenge is valid. Nader
was billed $82,102 in fees for court reporters and handwriting experts. Nader
v Serody, 06-696.

ALASKA
LOSS

On November 17, the Alaska
Supreme Court upheld the old definition of "political party". Green
Party of Alaska v State, S-11964. The old definition said a party is either
a group with registration equal to 3% of the last gubernatorial vote, or which
polled 3% for Governor. Greens had argued that the vote for any statewide
office, not just Governor, should count. The only statewide races are President,
Governor, U.S. Senate, and U.S. House.

It has been common for
Alaska Greens to poll over 3% for Congress. In 1996 the Green candidate for
U.S. Senate, Jed Whittaker, outpolled the Democratic nominee, 29,037 votes
to 23,977 votes. The party has been less successful in gubernatorial races.

In 2004, the legislature
made the "party" definition even harder, and the Green Party has
another case pending in lower state court against the new definition. The
new definition says a party is either a group with registration equal to 3%
of the last vote cast, or which polled 3% for one particular statewide race
every two years. The particular race in gubernatorial years is Governor; in
presidential years, it is U.S. Senate. If no U.S. Senate seat is up in a presidential
year, then it is U.S. House.

The Alaska Supreme Court
implicitly accepted the stateís argument that the minor party vote is less
meaningful in races that are easy wins for the Republican Party over the Democratic
Party. It says, "Because the gubernatorial term (unlike federal offices)
is limited, there will be non-incumbents running at regular intervals. Consequently,
the governorís race is the only statewide election in which a competitive
race may be predicted with some confidence."

Ironically, though, the
new law (still under attack in court) contradicts the stateís theory
that only the gubernatorial vote is meaningful. This is because, as noted
above, the new law requires a party to poll a certain vote for the
so-called "less meaningful" races (but only in presidential years).

The decision also said
that 20 other states use only the gubernatorial vote, or else use only the
gubernatorial and presidential votes. The decision said that these states
include Colorado, Georgia, Kansas, Montana, Nebraska, New Mexico, and North
Dakota. The Court was factually wrong for all seven of those states (except
that one could argue that they were halfway right about Georgia, and that
New Mexico is ambiguous). The Court made these factual errors because it relied
in inaccurate evidence submitted by the state. Steps are being taken to correct
these errors.

BALLOT
ORDER

On August 17, 2006, the
New Hampshire Supreme Court ruled that the state Constitution requires that
all parties, and all candidates, have an equal chance to get the best spot
on ballots (see the September 1 B.A.N. for more detail). This decision
(Akins v Sec. of State, 904 A.2d 702) has triggered a new interest
in this issue, nationwide.

On November 4, the New
York Times carried an op-ed, "In the Voting Booth, Bias Starts at
the Top." The author, Jon Krosnick, is a professor of communication and
political science at Stanford. He argues that candidates and parties listed
on the top line get a significant, if small, advantage, and that fairness
demands that all candidates and all parties enjoy an equal opportunity to
appear first.

Since then, several other
major newspapers have written articles on this subject. For example, The
Courier-Journal of Louisville, Kentucky, carried a lengthy article on
November 18 titled, "Being First on Ballot Has Advantages."

In 1978, the 7th
circuit ruled that the U.S. Constitution requires that all parties have an
equal chance for the best spot on the ballot, but in 1979 that circuit said
that principle only applies to qualified parties. In 1980 the 8th
circuit also ruled that the Constitution requires that all parties have an
equal chance for the top line, and made no exceptions.

This area of the law
has long been dormant, but is about to revive. A lawsuit is currently pending
in federal court against Marylandís law mandating alphabetical order of candidates
(Schaefer v Lamone). Another lawsuit is pending in state court against
Massachusettsí policy of listing incumbents first (White v Galvin).

SIGNATURES
FOR 2008

Voter turnout in November
2006 was 39.7% of the eligible electorate ("eligible electorate"
means registered voters plus people eligible to register). Although low, this
was significantly higher than in 2002, when turnout was only 36%. Since ballot
access requirements (in many states) for 2008 are calculated as a percentage
of the number of votes cast in 2006, the higher turnout means more signatures
will be needed in 2008.

Although it is not possible
to know exactly how many signatures will be needed in 2008 for a new party
or independent presidential candidate, the number will be close to 690,000.
This assumes that the candidate is pragmatic, and uses the easier method (either
new party or independent candidate) in each state. That compares to 634,727
in 2004. "Easier" means the method used most often, not necessarily
the method with the lowest number. Thus, the "easier" method in
California is the independent petition of 158,372 signatures, not the new
party method of approximately 85,000 registrations.

NOW
IS THE TIME TO FIND SPONSORS FOR 2007

This month is an ideal
time to find a legislator to introduce bills in 2007 sessions of the legislature.
Many legislatures restrict the number of bills that any legislator may introduce.
If one waits, one is likely to be told, "Sorry, I already have as many
bills as I am able to introduce." Even though state legislatures wonít
come into session until early January, bills are often filed before the session
begins. Hundreds of bills have already been filed in Texas.

Seven minor party nominees
were elected to state legislatures on November 7, 2006: the Vermont Progressive
Party elected six, and the Constitution Party elected one in Montana. No Greens
or Libertarians were elected, although in Maine, three Greens were within
a few hundred votes of winning. John Eder (who had been elected as a Green
in 2002 and 2004) was defeated for re-election in a two-person race with 48.5%
of the vote. Also in Maine, two Greens outpolled Republican nominees, but
lost to Democrats. In Vermont, one Libertarian who also had the Republican
nomination polled 43.6% of the vote.

MINOR
PARTIES IN LOCAL ELECTIONS

The Indiana Libertarian
Party won two partisan elections for Township Supervisors (one in Henry County
and one in Wayne County). The Nevada Constitution Party won a two-party race
for Eureka County Clerk-Treasurer, as well as a two-party race for Constable
in Searchlight.

The New Mexico Libertarian
Party had hoped to re-elect its County Commissioner, Paul Trujillo, in Valencia
County. However, he placed second in a three-party race, outpolling the Republican
nominee but losing to the Democratic nominee. Some observers believe that
Trujillo would have won, if it had not been for the straight-ticket device.
In New Mexico, 50% of the voters usually use it. No party other than the Democratic
or Republican Parties has ever won a partisan election in New Mexico.

In non-partisan elections,
Greens elected two members to the Portland, Maine city council. A Green was
elected Mayor of Richmond, California.

TWO
INDEPENDENTS WIN FOR SENATE

Two independent candidates
were elected to the Senate, Joseph Lieberman and Bernie Sanders. This is the
first time since 1970 that two candidates who were not major party nominees
were elected to the U.S. Senate. Harry F. Byrd was elected as an independent
from Virginia in 1970, and James Buckley was elected as a Conservative from
New York that year.

The Vermont Senate race
was the first U.S. Senate election in U.S. history at which the major party
combined vote was less than one-third of the total vote cast for that office.

DOUG
FRIEDLINE DIES

Doug Friedline died on
November 10, at the age of 49, from a heart attack. He had been perhaps the
only campaign manager in the nation who made a living representing independent
and minor party nominees. He had been manager for Jesse Ventura in 1998, and
for Max Linn in Florida this year. He was a much-loved figure.

WRITE-IN
CANDIDATE ELECTED SHERIFF

On November 7, the voters
of Greene County, Alabama, elected Ison Thomas sheriff, by write-in votes.
He defeated the only ballot-listed candidate by 100 votes.

WORKERS
WORLD PARTY WIN

On September 26, a New
York state court dismissed a libel lawsuit that had been filed against the
Workers World Partyís newspaper. The paper had published a story alleging
that the WCI Steel had underfunded pensions. Renco Group, Inc. v Workers
World Party, 102875-06, Manhatten. Justice Edward Lehrner said the article
expressed opinion, and is therefore immune from such lawsuits.

VOTER
REGISTRATION CHART

The next B.A.N. will
have a chart for voter registration in each party in each state, and more
election returns.

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